Com. v. Levenberg, F.

J-S32040-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
FRANK LEVENBERG :
:
Appellant : No. 2680 EDA 2018
Appeal from the Judgment of Sentence Entered December 19, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0002146-2016
BEFORE: SHOGAN, J., NICHOLS, J., and MURRAY, J.
MEMORANDUM BY MURRAY, J.: FILED JULY 23, 2019
Frank Levenberg (Appellant) appeals from the judgment of sentence
imposed following revocation of his probation. Upon review, we affirm in part
and vacate in part, and remand to the trial court for re-sentencing.
The trial court detailed the underlying facts:
On January 1, 2016 at approximately 3:15 A.M., [Appellant]
approached his ex-wife, [the Victim], outside a bar located in
Philadelphia. The Victim had an active Protection from Abuse
Order against [Appellant] at the time. The Victim complained that
[Appellant] grabbed her by the arm and attempted to pull her
away from her then-boyfriend. An altercation ensued before the
Victim and her boyfriend fled in a cab. [Appellant] was arrested
and charged with contempt for violation of an order or agreement,
simple assault, stalking, and harassment.
On August 7, 2017, [Appellant] entered a negotiated no
contest plea on the charges of simple assault and stalking by
repeatedly committing acts to cause fear, which was accepted by
the Honorable Pamela Pryor Dembe. [Appellant] received a
sentence of 11½ to 23 months [of] incarceration on the charge of
simple assault and 7 years [of] reporting probation on the charge
of stalking. All other charges were dropped. [Appellant] was
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released immediately on probation. On August 21, 2017,
[Appellant] filed a Motion for Reconsideration. On October 6,
2017, Judge Dembe denied [Appellant’s] Motion for
Reconsideration.
On December 19, 2017, a Violation of Probation Hearing was
held before Judge Dembe. . . . Erika Levenberg (“E. Levenberg”)
[Appellant’s] adult daughter, testified for the Commonwealth. E.
Levenberg testified that she received calls through Facebook
messenger from [Appellant] in which he ranted that the Victim
had better return his possessions “or it won’t end pretty.” She
testified that on August 15, 2016, approximately 8 days after
[Appellant] entered into the negotiated guilty plea, E. Levenberg
discovered sugar in the gas tank of her car. The car E. Levenberg
was driving was registered in the name of her mother, [the
Victim]. E. Levenberg testified that [Appellant] reached out to her
soon thereafter and told her “soon your mom won’t have a car at
all” and that [Appellant] did not believe E. Levenberg when she
told him that she was the person regularly driving the car. E.
Levenberg stated that she spent $270 to drain the gas tank and
that she was without a car for two or three days. E. Levenberg
testified that two or three days later, [Appellant] called her and
told her that he knew where she and her mother lived. E.
Levenberg testified that she and her mother moved twice since he
was arrested “[j]ust because of harassment. He kept coming
breaking my mom[’s] car windows, admitting it but there was not
proof for cops to arrest him so we just had to keep moving.” E.
Levenberg testified that, to the best of her knowledge, [Appellant]
did not know where they lived at the time of the hearing.
Next, the Victim testified. The Victim also testified that sugar
was found in the gas tank of the car on August 15, 2016. She
testified that the sugar was not present in the gas tank on August
14, 2016 and stated that it looked like a 5-pound bag was used to
fill the tank. [The Victim] testified [Appellant] constantly told her
previously that “bad things happen in the rain.” [The Victim]
testified that [Appellant] had a pattern of damaging her cars when
it rained as follows:
Bad things happen in the rain are his words. Every time any
vehicle was touched, it was raining. It was raining the 14th
[into] the 15th overnight. Didn’t get out and go check the
car at three o’clock in the afternoon. You know, go to the
gas station, there’s sugar in the gas tank. Automatic bell
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rings off. I’ve had no issues with anybody or anything the
whole time [that [Appellant] was incarcerated].
[The Victim] further testified that “none of my stuff has ever been
touched before by anybody except for him. I have him on video
previously. I’m just tired of it. I want to live my life in peace
without any problems from him.” [The Victim] testified that she
contacted [Appellant]’s probation officer a few days later in order
to report the incident. [The Victim] testified that she does not
speak to [Appellant] outside of [c]ourt and never informed
[Appellant] where she was living while he was incarcerated.
Next, Defense Counsel highlighted information from
[Appellant]’s probation report for the [c]ourt. Defense Counsel
stated that [Appellant] was reporting to probation bi-weekly,
which is extremely restrictive. He stated that [Appellant] has
been taking his medication and tested negative on all of his drug
tests.
Next, [Appellant] testified that he was never questioned by the
police or arrested for criminal activity related to the incident
described by E. Levenberg and [the Victim]. [Appellant] testified
that his probation officer was the only person to question him
related to this incident. [Appellant] denied coming into contact
with an automobile driven by E. Levenberg or [the Victim]. He
testified that he was living with a friend at the time this occurred
and his roommate did not have a job at the time. [Appellant]
stated that he did not want to know from the probation officer on
what date the incident occurred but offered to obtain a statement
from his roommate that he was at home at the time. [Appellant]
testified that E. Levenberg was lying because of [the Victim]. He
testified that he and E. Levenberg called each other back and forth
on Facebook messenger and talked about property he inherited
from his mother that had to be returned. [Appellant] further
testified that [the Victim] received $10,000 from fraudulently
stating that she was in an accident and told E. Levenberg that the
money, along with any possessions purchased with the money,
had to be returned. [Appellant] testified that he has a Protection
From Abuse Order against [the Victim]. [Appellant] testified that
[the Victim] has his mother’s ashes and urn, that his mother is
being denied a proper Jewish burial as a result, and that he is still
angry at [the Victim] for that.
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Next, Nicole Miller (“Miller”) testified for [Appellant]. Miller
testified that she is [Appellant]’s fiancé and that he has was living
with her from sometime in August when he was released from
custody until the time of the VOP Hearing. Miller testified that she
and [Appellant] do a lot of things together, that [Appellant] is
home a lot, and that she has never been suspicious about where
he was. Miller testified that she goes with [Appellant] to the
doctor, psychiatrist, psychologist, and probation office. Miller
testified that [Appellant] has been taking his medication.
Next, Probation Officer Shawn Kearse (“Kearse”) of the Adult
Probation Mental Health Unit testified. Kearse testified that
[Appellant] was compliant with probation. He testified that
[Appellant] informed him that he was concerned about his
daughter and wife making accusations and that he was going to
file a criminal report against them.
The [trial court] found E. Levenberg and the Victim “very
credible.” The [c]ourt found [Appellant] in technical violation of
parole/probation and imposed a sentence of 2 to 7 years [of]
incarceration on the charge of stalking followed by 2 years [of]
reporting probation on the charge of simple assault. . . .
* * *
On December 20, 2017, [Appellant] filed a Motion for
Reconsideration of the VOP Sentence. On December 27, 2017,
Judge Dembe denied [Appellant]’s Motion for Reconsideration. On
January 10, 2018, [Appellant] filed a Notice of Appeal. On January
11, 2018, [Appellant] filed a Second Motion for Reconsideration of
VOP Sentence. On January 28, 2018, Judge Dembe issued a
1925(b) Order for [Appellant] to file a Concise Statement of
Matters Complained on Appeal by February 20, 2018. On
February 16, 2018, the [trial court]’s file was administratively
transmitted to the Superior Court without an Opinion because
Judge Dembe was no longer sitting in the Philadelphia Court of
Common Pleas Criminal Division. On February 16, 2018,
[Appellant] filed a Statement of Matters Complained of on Appeal.
On March 26, 2018, the Superior Court dismissed [Appellant]’s
appeal for failing to file a docketing statement pursuant to
Pa.R.A.P. 3517.
On March 28, 2018, [Appellant] filed a pro se PCRA petition in
which he claimed that Appellate Counsel was ineffective for failing
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to file a docketing statement with the Superior Court. On August
28, 2018, [Appellant]’s direct appeal rights were reinstated nunc
pro tunc by Judge Brinkley.
On August 28, 2018, [Appellant] filed a Notice of Appeal. On
November 29, 2018, [Appellant] was sent an Order Pursuant to
1925(b). On December 5, 2018, [Appellant] filed his Statement
of Matters Complained of on Appeal.
Trial Court Opinion, 12/18/18, at 2-6 (record citations and footnote omitted).
Appellant presents four issues on appeal:
1. Whether there was insufficient evidence to establish a violation
of probation by a preponderance of evidence in violation of the
Federal and State Due Process clauses?
2. Whether the weight of the evidence presented during the
violation of probation (hereinafter “VOP”) hearing so outweighed
the evidence supporting the trial court’s findings as to violation
the Due Process Clauses?
3. Whether the trial court abused its discretion in sentencing
Appellant to 2 to 7 years [of incarceration] for his technical
violations?
4. Whether or not the sentence imposed for the count of Simple
Assault was illegal?
Appellant’s Brief at 3.
In his first issue, Appellant argues that the evidence was insufficient to
sustain the trial court’s decision to revoke his probation. Appellant asserts
that the Victim and E. Levenberg failed to present any evidence other than
their own testimony to support their claims that their vehicles sustained
damage caused by Appellant.
Our standard of review of violation of probation proceedings is well
established. “Revocation of a probation sentence is a matter committed to
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the sound discretion of the trial court and that court’s decision will not be
disturbed on appeal in the absence of an error of law or an abuse of
discretion.” Commonwealth v. Colon, 102 A.3d 1033, 1041 (Pa. Super.
2014). “The burden of proof for establishing a violation of probation is a
preponderance of the evidence, lesser than the burden in a criminal trial of
proof beyond a reasonable doubt.” Id. at 1042 (citation omitted). “The
‘preponderance of the evidence’ is the lowest burden of proof in the
administration of justice, and it is defined as the greater weight of the
evidence, i.e., to tip a scale slightly in one’s favor.” Commonwealth v.
Ortega, 995 A.2d 879, 886 n.3 (Pa. Super. 2010).
As we have explained:
“When assessing whether to revoke probation, the trial court must
balance the interests of society in preventing future criminal
conduct by the defendant against the possibility of rehabilitating
the defendant outside of prison. In order to uphold a revocation
of probation, the Commonwealth must show by a preponderance
of the evidence that a defendant violated his probation.”
Commonwealth v. Allshouse, 33 A.3d 31, 37 (Pa. Super. 2011)
(quotation marks and citations omitted). “[T]he reason for
revocation of probation need not necessarily be the commission
of or conviction for subsequent criminal conduct. Rather, this
Court has repeatedly acknowledged the very broad standard that
sentencing courts must use in determining whether probation has
been violated[.]” [Ortega, 995 A.2d at 886]. “A probation
violation is established whenever it is shown that the conduct of
the probationer indicates the probation has proven to have been
an ineffective vehicle to accomplish rehabilitation and not
sufficient to deter against future antisocial conduct.” Id.
Colon, 102 A.3d at 1041.
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In rejecting Appellant’s probation revocation sufficiency claim, the trial
court explained:
In the case at bar, direct and circumstantial evidence presented
at the violation hearing was sufficient to prove by a preponderance
of the evidence that [Appellant] was in technical violation of his
probation. As a condition of the negotiated guilty plea [Appellant]
entered on August 8, 2017, he was required to stay away from
[the Victim]. E. Levenberg testified that [Appellant] threatened
that [the Victim] had to return his property or “it won’t end
pretty.” [N.T., 12/19/17, at] 9. Two days later, E. Levenberg
discovered sugar in the gas tank of the car she was driving, which
was registered to [the Victim]. This is a clear violation of the Stay
Away Order.
The timing of the discovery of sugar in the gas tank is crucial.
The sugar was discovered only 8 days after [Appellant] entered a
negotiated guilty plea for stalking and contempt of a Protection
From Abuse Order and was released from custody. [The Victim]
testified that [Appellant] boasted that bad things happen when it
rains. [Id. at 17. The Victim] testified that it rained the previous
night, so damage to her car in this instance fit the same pattern
because [Appellant] had a history of damaging [the Victim]’s cars
when it rained. [See id. at 17-18].
Moreover, [Appellant]’s own testimony corroborated E.
Levenberg’s testimony. E. Levenberg stated that [Appellant]
called her on August 13, 2017 and talked about property that she
and [the Victim] had to return to [Appellant]. [Id. at 9.] E.
Levenberg testified that [Appellant] was ranting and made
threats. [Id.] [Appellant] testified that he called E. Levenberg in
order to have his property returned and admitted that he felt
upset about the subject. Id. at 28-29, 31. [Appellant] testified
that he told E. Levenberg the following:
And that’s when I told her, everything that you buy with that
money you’re going to have to return. You bought a car
with it, you’re going to lose the car due to the fact that the
money was committed [sic] by fraud.
Id. at 29. While [Appellant] denied putting sugar in the gas tank
of the vehicle, he corroborated other parts of E. Levenberg’s
testimony which showed that he was continuing his past actions.
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Circumstantial evidence of [Appellant] placing sugar in the gas
tank of the car demonstrated a flagrant violation of probation and
[Appellant]’s inability to reform.
Accordingly, there was sufficient evidence for the Court to
revoke probation.
Trial Court Opinion, 12/18/18, at 9-10.
We agree. Our review of the transcripts of Appellant’s violation of
probation hearing reveals the following. Shortly after his original sentencing
in this case, Appellant began threatening and harassing E. Levenberg and the
Victim. N.T., 12/19/17, at 10-11, 17. Appellant told E. Levenberg that “soon
your mom won’t have a car at all” and that two or three days later she
discovered sugar in the Victim’s car. Id. at 10-11. According to the Victim,
Appellant repeatedly told her that “bad things happen in the rain.” Id. at 17.
The Victim stated that every time her vehicle was vandalized, it occurred
during a rain storm. Id. The Victim also reported that she had no instances
of anyone vandalizing her property while Appellant was incarcerated. Id. As
stated above, the trial court found E. Levenberg’s and the Victim’s testimony
to be “very credible.” Trial Court Opinion, 12/18/18, at 5. Based on the
testimony, we conclude that the trial court did not abuse its discretion in
determining that the Commonwealth satisfied its burden of proving, by a
preponderance of the evidence, that Appellant violated his probation. See
Colon, 102 A.3d at 1041-42.
In his second issue, Appellant argues that the trial court’s determination
that he violated his probation was against the weight of the evidence.
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Specifically, Appellant asserts that the Commonwealth failed to present any
evidence corroborating the stories of the Victim and E. Levenberg.
Consequently, Appellant contends that their testimony was not credible.
As the Commonwealth points out, there is no authority that indicates
that we may entertain on appeal a challenge to the weight of the evidence
from a probation revocation by the trial court. See Commonwealth v.
McDermott, 547 A.2d 1236, 1246 (Pa. Super. 1988) (stating that there was
“no authority for appellant’s assumption that a challenge to the weight of the
evidence may properly be entertained on appeal from parole revocation by
the trial court”). “A [violation of probation (VOP)] hearing differs from a trial,
as probation and parole are not part of the criminal prosecution; the full
panoply of rights due a defendant in a criminal trial does not apply at a VOP
hearing.” Commonwealth v. Mullins, 918 A.2d 82, 85 (Pa. 2007). Indeed,
the standards for a violation of probation hearing are distinctly different from
a trial, as a VOP hearing “takes place without a jury, with a lower burden of
proof, and with fewer due process protections.” Id. Accordingly, on this
authority, Appellant’s weight of the evidence claim presents no basis for relief.
Moreover, Appellant’s argument does nothing more than ask that we
overturn the trial court’s credibility determinations with respect to E.
Levenberg and the Victim. It is well-settled that an appellate court cannot,
on a weight of the evidence review, substitute the fact-finder’s credibility
determinations with its own. Commonwealth v. Blackham, 909 A.2d 315,
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320 (Pa. Super. 2006) (“It is not for this Court to overturn the credibility
determinations of the fact-finder”). Therefore, even if Appellant could present
a weight of the evidence claim to this Court, we are bound by the trial court’s
credibility determinations, which, as demonstrated by our analysis of
Appellant’s challenge to the sufficiency of the evidence, are supported by the
record. Therefore, Appellant’s second issue fails.
For his third issue, Appellant argues that the trial court abused its
discretion in sentencing him because his sentence was harsh and excessive
and not “in accordance with the fundamental norms [of] 42 Pa.C.S.[A.] §
9721[(b)].” Appellant’s Brief at 12.
“The right to appellate review of the discretionary aspects of a sentence
is not absolute, and must be considered a petition for permission to appeal.”
Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014).
“An appellant must satisfy a four-part test to invoke this Court’s jurisdiction
when challenging the discretionary aspects of a sentence.” Id. We conduct
this four-part test to determine whether:
(1) the appellant preserved the issue either by raising it at the
time of sentencing or in a post[-]sentence motion; (2) the
appellant filed a timely notice of appeal; (3) the appellant set forth
a concise statement of reasons relied upon for the allowance of
his appeal pursuant to Pa.R.A.P. 2119(f); and (4) the appellant
raises a substantial question for our review.
Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation
omitted). “A defendant presents a substantial question when he sets forth a
plausible argument that the sentence violates a provision of the sentencing
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code or is contrary to the fundamental norms of the sentencing process.”
Commonwealth v. Dodge, 77 A.3d 1263, 1268 (Pa. Super. 2013)
(quotations and citations omitted).
Here, Appellant preserved his discretionary aspects of sentencing claim
by raising it in a post-sentence motion. See Post-Sentence Motion for
Reconsideration of Sentence, 12/20/17. Appellant also filed a timely notice of
appeal and included in his appellate brief a concise statement of the reasons
relied upon for the allowance of his appeal pursuant to Pennsylvania Rule of
Appellate Procedure 2119(f). See Appellant’s Brief at 11. Thus, we must
determine whether Appellant’s discretionary aspects of sentencing claim
raises a substantial question for our review.
Appellant argues that his sentence is excessive and that the trial court
failed to consider the appropriate statutory factors of 42 Pa.C.S.A. § 9721(b).
This Court has held that an excessive sentence claim – in conjunction with an
assertion that the court failed to consider the factors of Section 9721(b) –
raises a substantial question. Commonwealth v. Roane, 204 A.3d 998,
1002-03 (Pa. Super. 2019). Accordingly, we turn to the merits of Appellant’s
sentencing claim.
Our standard of review for discretionary aspects of sentencing claims is
as follows:
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment. Rather,
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the appellant must establish, by reference to the record, that the
sentencing court ignored or misapplied the law, exercised its
judgment for reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision.
Commonwealth v. Horning, 193 A.3d 411, 418 (Pa. Super. 2018) (citation
omitted), appeal denied, 204 A.3d 370 (Pa. 2019).
Section 9721(b) of the Sentencing Code sets forth general sentencing
standards for trial courts and provides, in pertinent part:
(b) General standards.—. . . the court shall follow the general
principle that the sentence imposed should call for confinement
that is consistent with the protection of the public, the gravity of
the offense as it relates to the impact on the life of the victim and
on the community, and the rehabilitative needs of the defendant.
. . . In every case in which the court imposes a sentence for a
felony or misdemeanor, modifies a sentence, resentences an
offender following revocation of probation, county intermediate
punishment or State intermediate punishment or resentences
following remand, the court shall make as a part of the record,
and disclose in open court at the time of sentencing, a statement
of the reason or reasons for the sentence imposed.
42 Pa.C.S.A. § 9721(b).
As our Supreme Court has explained, however, a trial court does not
need to adhere to all of the mandates of Section 9721(b) when resentencing
an individual following the revocation of probation:
The sentencing court’s institutional advantage is, perhaps,
more pronounced in fashioning a sentence following the
revocation of probation, which is qualitatively different than an
initial sentencing proceeding. At initial sentencing, all of the rules
and procedures designed to inform the court and to cabin its
discretionary sentencing authority properly are involved and play
a crucial role. However, it is a different matter when a defendant
reappears before the court for sentencing proceedings following a
violation of the mercy bestowed upon him in the form of a
probationary sentence. For example, in such a case, contrary to
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when an initial sentence is imposed, the Sentencing Guidelines do
not apply, and the revocation court is not cabined by Section
9721(b)’s requirement that “the sentence imposed should call for
confinement that is consistent with the protection of the public,
the gravity of the offense as it relates to the impact on the life of
the victim and on the community, and the rehabilitative needs of
the defendant.” 42 Pa.C.S.[A.] § 9721. See Commonwealth v.
Reaves, [] 923 A.2d 1119, 1129 ([Pa.] 2007) (citing 204
Pa.Code. § 303.1(b) (Sentencing Guidelines do not apply to
sentences imposed as result of revocation of probation)).
Upon revoking probation, “the sentencing alternatives
available to the court shall be the same as were available at the
time of initial sentencing, due consideration being given to the
time spent serving the order of probation.” 42 Pa.C.S.[A.] §
9771(b). Thus, upon revoking probation, the trial court is limited
only by the maximum sentence that it could have imposed
originally at the time of the probationary sentence[.]
Commonwealth v. Pasture, 107 A.3d 21, 27-28 (Pa. 2014).
Therefore, to the extent Appellant challenges the trial court’s failure to
consider the appropriate factors under Section 9721(b) in fashioning his
sentence, such claim does not afford a basis for relief. See id. The trial court
was only limited by the maximum sentence it could have imposed at the time
of Appellant’s original sentencing. See id. The trial court explained:
In the case at bar, the [trial court] properly [re]-sentenced
[Appellant] to a term of 2 to 7 years [of] incarceration on the
charge of stalking. After the [trial court] revoked [Appellant]’s
probation anticipatorily, the [c]ourt was limited only to the
maximum sentence that [it] could have imposed at the time of
the original sentencing. Indeed, it must be underscored that
[Appellant] was released from custody for only 8 days after
entering into a negotiated no contest plea on the charges of
stalking and simple assault before he returned to damaging the
same victim’s car. [Appellant] still had a valid Protection From
Abuse Order against him at the time that he damaged the car,
which indicates that he was likely to commit another crime if he
was not imprisoned. [Appellant] has never expressed remorse for
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his actions. Furthermore, [the trial court] accepted [Appellant]’s
negotiated no contest plea, heard the underlying facts, and was
familiar with [Appellant] when she imposed his original sentence.
Instead of simply complying with the terms and conditions of his
probation so he could finish out his sentence, [Appellant]
continued to disregard the [c]ourt’s directions and did whatever
he wanted to do.
Trial Court Opinion, 12/18/18, at 12-13.
Based on the foregoing, and our review of the certified record on appeal,
we conclude that the trial court sentenced Appellant in accordance with the
principles outlined in Pasture. Consequently, the trial court did not abuse its
discretion in re-sentencing Appellant following the revocation of his probation
to two to seven years of incarceration on his stalking charge.
Finally, we recognize that at the conclusion of its Rule 1925(a) opinion,
the trial court, sua sponte, asks this Court to vacate the sentence of two years
of probation it imposed on Appellant’s simple assault charge following the
revocation of Appellant’s parole. See id. at 13. The trial court asserts that
the sentence is illegal because the trial court originally imposed a sentence of
11½ to 23 months of incarceration on the simple assault charge and
consequently, its only sentencing option upon revoking Appellant’s parole on
that charge was to recommit him to that sentence. See id. We agree. As
we explained:
Unlike a probation revocation, a parole revocation does not
involve the imposition of a new sentence. Indeed, there is no
authority for a parole-revocation court to impose a new penalty.
Rather, the only option for a court that decides to revoke parole
is to recommit the defendant to serve the already-imposed,
original sentence.
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Commonwealth v. Kalichak, 943 A.2d 285, 290 (Pa. Super. 2008).
Therefore, because the trial court did not recommit Appellant to serve
the remainder of his original 11½ to 23 months of incarceration on his simple
assault charge upon revoking his parole, and instead imposed a two-year term
of probation, we conclude that his sentence is illegal.
In sum, we affirm the revocation of Appellant’s probation and parole.
However, because we have determined the trial court imposed an illegal
sentence, and the trial court ordered Appellant’s illegal probationary sentence
for simple assault to follow his term of incarceration for stalking, we vacate
Appellant’s judgment of sentence on all charges and remand this matter to
the trial court for resentencing. See Commonwealth v. McCamey, 154 A.3d
352, 359 (Pa. Super. 2017) (Where “the resentencing has the potential to
disrupt the trial court’s entire sentencing scheme, we vacate all of Appellant’s
sentences and remand for resentencing at all counts.”); see also
Commonwealth v. Vanderlin, 580 A.2d 820, 831 (Pa. Super. 1990) (“[I]f a
trial court errs in its sentence for one count in a multi-count case, then all
sentences for all counts will be vacated so that the court can re-structure its
entire sentencing scheme.”).
Judgment of sentence affirmed in part and vacated in part. Case
remanded. Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/23/19
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